It Wasn’t Even An April Fool’s Joke: Tennessee Women Jailed for Drug Use While Pregnant, Even Though Law Said They Couldn’t Be

Tennessee women who take illegal drugs during their pregnancy cannot be arrested for the harm they do to their babies. But some ended up in jail anyway.

That’s because some police and prosecutors — unaware state law changed last year — pursued criminal charges thinking they had the authority to do that. They did not realize lawmakers eliminated their ability to charge women with assault or homicide against their unborn children.

Even the state attorney general overlooked the change when he issued a written opinion Jan. 7 about whether women could be prosecuted.

Well, that just fills me with confidence about the justice system in this state.

There’s a good reason why public health people object to criminalization of these women, and it’s a reason that’s actually good for protecting the health of women and babies. Women with addictions who fear prosecution avoid prenatal care, and don’t get help for their substance abuse issues. Criminalization, on the other hand, simply demonizes women for not performing perfectly as incubators, especially low-income women with fewer resources for care.

The criminalization approach simply fills jails and separates families, rather than ensuring both mother and baby have the best chance at being healthy and forming health relationships. From one affected woman:

“The day before I was supposed to bring my daughter home from the hospital, they took me to jail. My daughter is almost 8 months old, and I’ve never spent time alone with her.”

It’s unfortunately not unusual to treat women as though they are simply baby vessels, expected to perform perfectly on command. One thing I notice in the tone of the Tennessean article is the lack of emphasis on the barriers to getting addiction therapy while pregnant, or the need to actually help women with this. Instead, there is disappointment about not getting to prosecute new mothers against the advice of public health experts. It’s all as if it’s simply natural to look at women as baby-making objects who should be acted on for everybody else’s good.

“Hemenway said she would prefer to be able to bring charges”and
“Even though we don’t like it, we don’t think we can charge the two ladies in these cases.”

“a 30-year-old Murfreesboro woman gave birth to medically fragile twins on Sept. 5 after using cocaine and opiates, and ‘very rarely’ attending prenatal visits, according to court records”and in another case
“Her charging document didn’t specify an exact incident date for her drug use, although it does refer to Crum smoking cigarettes and failing to get prenatal care for 12 weeks.”and about nobody in particular
“Medical records filed in courts show the birth defects and costly hospital stays that accompany many drug-addicted newborns. These babies are often born premature and suffer seizures, vomiting and hyperactivity.”

Now, maybe they can’t talk about it because there are cases pending or whatever. And some drug exposures can indeed have negative effects on babies. But twins are often born “medically fragile,” period. Cigarettes are legal. Smoking during pregnancy is legal. A specific number and timing of prenatal care visits is not mandated by law. It seems like, if we’re talking about jailing women for addictions suffered during pregnancy, while doing very little as a society to actually help them get better, we ought to at least be able to be specific and avoid all the hand-waving about what specific damage warranted the taking away of their freedom. Nothing in the above does that for the cases described, where women were jailed under a law that wasn’t even real at the time.

It comes as no surprise that the newspaper article online is getting comments like, “they shouldn’t get pregnant,” or “they should have gotten off drugs before they got pregnant.” Look, fully half of the pregnancies in this country are unintended, across all types of folks. People have no room to be self-righteous about planning pregnancy when that rate is so high, and when there can be many systemic barriers in place to getting help with addictions and preventing pregnancy in the first place. When addiction itself can make it more difficult to consistently use contraception. Fear of prosecution and lack of contextually sensitive treatment programs are huge barriers for women who find themselves pregnant with an addiction, and many women simply cannot afford addiction therapy at any time.

It’s not like two lines on a stick is a kind of magic that makes addiction vanish. It’s not like we have good options in place for pregnant women with addictions. It’s not like we can reasonably, legally prohibit pregnant women from taking any actions with any possible risks for fetuses. Should we all be legally required to present for X number of prenatal visits? To stay home? To avoid car travel? To avoid coffee? Are we actually interested in helping mothers and babies, or in controlling and punishing women for failing to perform perfectly as incubators, in reminding women that they are under surveillance because we want something out of them?

Apparently we are so zealous in our desire to punish drug-addicted mothers, that we can’t be bothered to learn when laws change. We just jail them anyway. Forget whether it’s good health policy – it wasn’t even the law.

A related article explains that a couple of bills are up for consideration in Tennessee, debate over which will further demonstrate what folks think the answers are to the questions above.

The Safe Harbor Act (SB 0459/HB 0277) would give pregnant women priority for entry at drug treatment centers, requires centers that get public funding to treat pregnant women, and prevents healthcare providers from seeking to terminate pregnant women’s parental rights because of addiction. In other words, it encourages access to treatment and avoids punishment of pregnant women with drug addiction problems. Another bill tries to make it so 90% of the women in the state have access to prenatal care.

In contrast, HB 1295/SB 1391 would make it so a woman could prosecuted for assault or murder if she uses a narcotic drug while pregnant and the child is born addicted, is harmed, or dies.

One of those approaches does something positive for the health of mothers and babies. The other gets off on punishing women. Full stop.

Of course women are not simply “baby vessels.” When we spank a child in the mall, however, we could be theoretically charged with abuse. How come, then, we are allowed to suffocate and cause damage to the unborn child and treat it as was a lesser crime, if a crime at all?

What these women were thinking when taking forbidden drugs during pregnancy. Don’t they know that most any drugs are going to hurt the babies? Not responsible mothers. Only this should be a reason for an arrest!

Tiffany, the difference there is that a born child is physically separate from the parents (a parent is able to be separated from the child), and while spanking a child harms the child, punishing the behavior of abuse is not as likely to prevent all care of the child – people don’t avoid picking up food or medicines for their kids because they might get in trouble for spanking. If a child is showing physical marks of abuse, the parent might avoid sending the child to school or doctors – and of course we should punish child abusers, but as in prenatal medical care, that punitive aspect is interfering with something that is good for the child. In the case of pregnancy, there is literally nowhere else the fetus can go to get prenatal care – we can’t threaten punishment to the parent without also interfering in a way that interferes with positive surveillance for the fetus, whereas a born child can be removed to another situation that may be more positive. The correction for addiction, too, is not separation and punishment – it’s medical and psychological care.

Jess, addiction tends to get in the way of rational thinking. Most women taking drugs in pregnancy don’t *start* taking drugs in pregnancy; they have existing drug addiction issues that require treatment. The evidence on harms of illegal drugs to fetuses shows that it varies by drug, and that the “crack baby” hype was largely that. Of course some illegal drugs may harm fetuses; legal drugs and substances, and simply leaving the house and getting in a car accident may as well. The issue shouldn’t be the legality, but treatment of the underlying addiction in order to have better outcomes for both women and babies. A positive pee stick literally is not a magic wand – women with addictions who become pregnant can no more be expected to just stop without fail than people who become pregnant while taking psychiatric meds or other legal prescriptions for medical conditions can be expected to stop treatment. There is an underlying issue to the behavior of drug abuse, and punishing addicts simply causes addicts to hide, harming their own and their fetuses’ health.